Franklin-Mason v. Johnson

District of Columbia, dcd-1:2003-cv-00945

ORDER granting in part {{69}} Motion in Limine. Signed by Magistrate Judge John M. Facciola on 5/29/13. (lcjmf1,)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROXANN J. FRANKLIN MASON, Plaintiff, v. Civil Action No. 03-945 (RWR/JMF) RAY MARBUS, Secretary, Department of the Navy, Defendant. MEMORANDUM ORDER This case was referred to me by Judge Roberts for full case management. Currently pending and ready for resolution is defendant's Motion in Limine and Supporting Memorandum of Points and Authorities [#69]. The plaintiff in this case was the plaintiff in another matter before this Court, Roxann J. Franklin-Mason v. John H. Dalton, Secretary of the Navy, Civil Action No. 96-2505 (RWR/JMF), in which plaintiff's complaint of racial and sexual discrimination was resolved by a settlement. Plaintiff thereafter filed motions to enforce that agreement, but this Court denied those motions for lack of jurisdiction over their subject matter. Memorandum Opinion [#156], Civil Action No. 96-2505. In this case, plaintiff has asserted that defendant retaliated against her because she sought to enforce the settlement agreement. Complaint [#1], Civil Action No. 03-945, at 4-20. She also alleges that the defendant breached the settlement agreement in the earlier case, Civil Action No. 96-2505. Id. at 9. On December 22, 2004, however, plaintiff dismissed the claim based on the breach of the settlement agreement. Minute Entry for 10/22/04. Defendant now moves in limine to seat a panel of twelve jurors and to instruct the jury that whether the defendant breached the settlement agreement in Civil Action No. 96-2505 is not before them because it is being litigated in a different case. Defendant also seeks an order directing that counsel for the plaintiff not be permitted to argue to the jury about any aspects of any claim that the settlement agreement was breached. [#69] at 6. For her part, plaintiff seeks a jury of six. Plaintiff's Opposition to Defendant's Motion in Limine [#72] at 1-2. She objects to "an instruction to the jury that Plaintiff has other litigation pending." Id. at 2. Nevertheless, she resists the motion in limine claiming the right to prove that the defendant failed to give her the "job duties or responsibilities commensurate with the position promised to her in the settlement agreement, and there is a nexus between her protected activity and the Agency's action." Id. at 3. First, as to his demand for twelve jurors, defendant ignores that the traditional purpose of a motion in limine is to "narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions." Graves v. District of Columbia, 850 F. Supp. 2d 6, 10 (D.D.C. 2011) (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.3d 1064, 1070 (3d Cir. 1990)). The number of jurors to be seated is not a matter of evidence but of trial procedure that I am certain Judge Roberts will determine at the pre-trial conference or at the commencement of trial. Second, plaintiff cannot be permitted to forget that she is prosecuting a separate action in Civil Action No. 96-2505, asserting a breach of the settlement agreement, and she dismissed the count claiming a breach of the settlement agreement from this lawsuit in 2004. By those actions, she has carefully cabined her breach claim to Civil Action No. 96-2505. As long as she persists in that position and intends to prosecute the breach action in Civil Action No. 96-2505, then that breach cannot be, in any way, a factual issue in this case. In my view, therefore, she and her 2 counsel must be precluded from asserting that the defendant breached the settlement agreement. Thus, while she may point to the lawsuit she filed as her protected activity and state that it was settled, and that thereafter the defendant engaged in retaliatory behavior, she may not state or argue that this behavior was in breach of the settlement agreement. If, on the other hand, she wants to pursue a claim that defendant breached the settlement agreement, then she should dismiss this lawsuit and prosecute only Civil Action No. 96-2505 in which she claims such a breach. Of course, due to the dispute regarding who has subject matter jurisdiction between this Court and the Court of Claims, plaintiff will need to wait until that issue is decided on appeal. It is, therefore, hereby, ORDERED that the Motion in Limine and Supporting Memorandum of Points and Authorities [#69] is GRANTED IN PART. SO ORDERED. Digitally signed by John M. Facciola DN: c=US, st=DC, l=Washington, email=john_m._facciola@dcd.us courts.gov, o=United States District Court for the District of Columbia, cn=John M. Facciola Date: 2013.05.29 10:12:42 -04'00' ____________________________________________ JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE 3